Karnataka High Court
Smt Pushpa Rao W/O Late Sri J Gundu Rao vs Sri G N Sathyanarayana on 6 February, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:5085
RFA No. 2517 of 2006
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO. 2517 OF 2006 (INJ)
BETWEEN:
1. SMT. PUSHPA RAO,
W/O LATE SRI. J. GUNDU RAO.
DEAD BY LRS
1(A). SAVITHA RAO,
AGED ABOUT 39 YEARS.
1(B). MAMATHA RAO,
AGED ABOUT 36 YEARS.
1(C). G. PRAVEEN,
AGED ABOUT 34 YEARS.
Digitally signed by 1(D). G. PRADEEP,
VANDANA S AGED ABOUT 31 YEARS.
Location: HIGH
COURT OF
KARNATAKA 2. SMT. SAVITHA RAO,
D/O LATE SRI. J. GUNDU RAO,
AGED ABOUT 39 YEARS.
3. SMT. MAMATHA RAO,
D/O LATE SRI. J. GUNDU RAO,
AGED ABOUT 36 YEARS,
REP. BY HER G.P.A. HOLDER
SMT. SAVITHA RAO
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RFA No. 2517 of 2006
4. G. PRAVEEN,
S/O LATE SRI. J. GUNDU RAO.
AGED ABOUT 34 YEARS.
5. G. PRADEEP,
S/O LATE SRI. J. GUNDU RAO.
AGED ABOUT 31 YEARS.
ALL ARE R/AT NO.11TH CROSS,
MALLESHWARAM,
BANGALORE - 560 003.
...APPELLANTS
(BY SRI. K.S. RAMESH AND
SRI. R. VIJAYAKUMAR, ADVOCATES)
AND:
1. SRI. G.N. SATHYANARAYANA,
SINCE DEAD BY HIS LRS.
1(A) SMT. RAMA,
W/O LATE G.N. SATHYANARAYANA,
AGED ABOUT 73 YEARS.
1(B) SRI. SUDHIR SATHYANARAYANA,
S/O LATE G.N. SATHYANARAYANA,
AGED ABOUT 40 YEARS.
1(C) SMT. SUMA SATHYANARAYANA,
D/O LATE G.N. SATHYANARAYANA,
LR.NOS.1(A) TO (C) ARE R/AT
NO.65, 2ND CROSS, J.P. NAGAR,
3RD PHASE, BENGALURU - 560 078.
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NC: 2024:KHC:5085
RFA No. 2517 of 2006
2. B.B.M.P.
REP. BY THE COMMISSIONER,
HEAD OFFICE, CORPORATION OFFICES,
CORPORATION CIRCLE, OPPOSITE HUDSON CIRCLE,
BENGALURU - 560 002.
...RESPONDENTS
(BY SRI. GOPAL SINGH AND
SRI. JAY KISHAN SHARMA, ADVOCATES FOR R1(A);
SRI. NAVEEN KUMAR, ADVOCATE FOR R1(B);
SRI. B.V. MURALIDHAR, ADVOCATE FOR R2)
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED.27.10.2006 PASSED IN
OS.NO.10926/1998 ON THE FILE OF THE XXVIII ADDL.CITY
CIVIL JUDGE, MAYOHALL UNIT, BANGALORE, DISMISSING THE
SUIT FOR MANDATORY INJUNCTION AND DAMAGES.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the unsuccessful plaintiffs in O.S.No.10926/1998 is directed against the impugned judgment and decree dated 27.10.2006 passed by the XXVIII Addl. City Civil Judge, Mayo Hall Unit, Bangalore, whereby the said suit filed by the appellants - plaintiffs against the respondent - defendant for mandatory injunction directing the respondent to hand over vacant possession of the suit schedule immovable property and for mesne profits was dismissed by the trial court.
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2. Heard learned counsel for the appellants and learned counsel for the respondents and perused the material on record.
3. For the purpose of convenience, the parties are referred to their rankings before the trial court.
4. Brief facts giving rise to the present appeal are as under:
The appellants - plaintiffs instituted the aforesaid suit inter-alia contending that they were the wife and children of one late J.Gundu Rao who expired on 24.04.1989 leaving behind the plaintiffs to succeed to his estate including the suit schedule immovable property as his heirs and legal representatives. It was contended that the suit schedule property originally belonged to one Mahaboob Pasha in whose favour the Bangalore Development Authority executed a lease-cum-sale agreement and possession certificate dated 19.09.1978 and put him in possession and enjoyment of the property. Since the said Mahaboob Pasha could not have executed a sale deed in favour of J.Gundu Rao within the ten year non-alienation period, he executed a sale agreement dated 23.04.1983 and GPA dated 24.04.1983 by receiving the entire sale consideration of Rs.42,000/- and put the said Gundu Rao in possession and enjoyment of the suit schedule -5- NC: 2024:KHC:5085 RFA No. 2517 of 2006 property. It was contended that after the demise of Gundu Rao on 24.04.1989, the plaintiffs instituted a suit in O.S.No.3870/1991 against the said Mahaboob Pasha for specific performance and other reliefs in respect of the suit schedule property. The said suit was decreed in favour of the plaintiffs vide judgment and decree dated 12.07.1996 which was put into execution in Ex.No.237/1997 culminating in a registered court sale deed dated 07.10.2005 executed in favour of the plaintiffs in respect of the suit schedule property.
4.1 The plaintiffs contended that the said Gundu Rao had financial commitments that were required to be fulfilled for the purpose of putting up construction of a residential house in the suit schedule property and in this regard, the defendant -
G.N.Sathyanarayana provided loan to the said Gundu Rao, at which time, he obtained signatures of Gundu Rao on several blank stamp papers as security for repayment of the said loan. It was contended that to enable the said Gundu Rao to repay the loan taken by him from the defendant, he permitted the defendant to lease out the suit schedule property in favour of the tenant and appropriate the rent so collected towards the loan. It was further contended that after the demise of Gundu Rao, the earlier tenant -6- NC: 2024:KHC:5085 RFA No. 2517 of 2006 of the suit schedule property vacated and since the entire loan had not been repaid back to the defendant, the defendant approached the plaintiffs in the year 1989 and requested them to permit him to occupy the suit schedule property by way of permissive possession,since there was a threat of eviction being faced by the defendant in H.R.C.No.2486/1988 filed by his landlord. Accordingly, the plaintiffs permitted the defendant to remain in permissive possession and occupation of the suit schedule property upto 31.12.1995. It was also contended that even after 31.12.1995, since the defendant did not vacate and hand over vacant possession of the suit schedule property to the plaintiffs in spite of issuance of legal notice dated 20.06.1968, the plaintiffs instituted the aforesaid suit for mandatory injunction directing the defendant to vacate and deliver vacant possession of the suit schedule property to the plaintiffs, for mesne profits and other reliefs.
5. The defendant contested the suit by filing his written statement denying and disputing the claim of the plaintiffs. However, the various allegations and claim with regard to the title and possession of Mahaboob Pasha and Gundu Rao over the suit schedule property and transactions between them was admitted -7- NC: 2024:KHC:5085 RFA No. 2517 of 2006 by the defendant. The defendant disputed the claim of the plaintiffs that they had succeeded to the suit schedule property upon the demise of Gundu Rao. So also, the various other allegations and claim made by the plaintiffs were denied by the defendant.
5.1 The defendant contended that after acquiring title and possession over the suit schedule property from Mehaboob Pasha, the said Gundu Rao executed a sale agreement dated 24.05.1983 in favour of one D.Subramani for a sale consideration of Rs.1 lakh and received Rs.80,000/- (Rs.30,000/- + Rs.50,000/-) as advance and part of the sale consideration. Subsequently, without intimating the defendant about the said Agreement with D. Subramani, the said Gundu Rao executed sale agreements dated 13.06.1984 and 22.05.1986, pursuant to which, the said Gundu Rao put the defendant in possession of the suit schedule property on 20.06.1984. As per the sale agreements entered into between Gundu Rao and the defendant, the entire sale consideration of Rs.1,50,000/- as well as additional amount of Rs.60,000/- was paid by the defendant to Gundu Rao towards the sale of the suit schedule property in favour of the defendant. It was contended that the said Gundu Rao had utilised the money paid by the defendant to cancel the sale agreement with Subramani by -8- NC: 2024:KHC:5085 RFA No. 2517 of 2006 repaying the entire amount received by him. It was also contended by the defendant that he performed 'Gruhapravesham' of the house in the suit schedule property on 17.12.1987 and has remained in occupation of the property from that time except for a brief period in 1987 when it was leased out in favour of one Dr.Venugopal Rao. It was also contended that despite repeated requests, neither Gundu Rao nor the plaintiffs came forward to execute the sale deed in favour of the defendant. It was therefore contended that the plaintiffs do not have any right over the suit schedule property and that the suit was liable to be dismissed.
6. Based on the aforesaid pleadings, the trial court framed the following issues and an additional issue: -
(i) Whether the plaintiffs prove that they are owners of suit schedule property?
(ii) Whether plaintiffs prove that defendant was in occupation of suit property by way of permissive possession?
(iii) Whether defendant proves that he is in occupation of the property under Agreement to sell from late Gundu Rao?
(iv) Whether defendant proves that he has become owner of the property?-9-
NC: 2024:KHC:5085 RFA No. 2517 of 2006
(v) Whether plaintiff is entitled to relief of possession?
(vi) Whether court fee paid is proper?
(vii) What order or decree?
Additional Issue:
(i) Whether the plaintiff is entitled for the relief of mandatory injunction and damages as sought for?
7. The plaintiffs examined plaintiff No.1 as PW-1 and plaintiff No.2 as PW-2 and documentary evidence at Exs.P1 to P9 were marked. The defendant examined himself as DW-1 and one witness as DW-2 and Exs.D1 to D38 were marked on his behalf.
8. After hearing the parties, the trial court rejected the claim of the plaintiffs and proceeded to dismiss the suit by passing the impugned judgment and decree, which is assailed in the present appeal.
9. The following points arise for consideration in the present are as under:-
(i) Whether the trial court was justified in coming to the conclusion that the appellants - plaintiffs had
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NC: 2024:KHC:5085 RFA No. 2517 of 2006 not established their title over the suit schedule property?
(ii) Whether the trial court was justified in holding that the defendant was entitled to the benefit of Section 53-A of the Transfer of Property Act?
(iii) Whether the trial court was justified in holding that the defendant was not in permissive possession and occupation of the suit schedule property?
(iv) Whether the impugned judgment and decree passed by the trial court warrants interference in the present appeal?
Re-Point No.1:-
10. A perusal of the issues framed by the trial court will indicate that issue No.1 relates to proof of ownership / title of the plaintiffs over the suit schedule property. The trial court has answered the said issue against the plaintiffs on the ground that since the BDA had not executed any sale deed in favour of Mahaboob Pasha, vendor / predecessor-in-title of Gundu Rao, the plaintiffs had not established their title over the suit schedule property. In this context, the trial court failed to consider and
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NC: 2024:KHC:5085 RFA No. 2517 of 2006 appreciate the categorical, unambiguous and unequivocal admissions made by the defendant in the written statement, wherein he has clearly admitted not only the title and possession of Mahaboob Pasha and Gundu Rao over the suit schedule property but also the sale transaction between them. It is also relevant to state that it is a matter of record that the plaintiffs herein instituted a suit for specific performance against Mahaboob Pasha in O.S.No.3870/1991 which was decreed in their favour by the trial court vide judgment and decree at Exs.P1 and P2 dated 12.07.1996 which attained finality and became conclusive and having been put into execution, the Executing court executed a registered sale deed at Ex.P10 dated 07.10.2005 in favour of the plaintiffs. These undisputed facts and circumstances clearly established that the plaintiffs were the absolute owners of the suit schedule property.
10.1 The trial court also failed to consider and appreciate the specific and definite stance / stand of the defendant himself in his pleadings and evidence that Gundu Rao was the owner of the suit schedule property, Gundu Rao had executed sale agreements in favour of D.Subramani which was subsequently cancelled, Gundo Rao had also executed the sale agreement at Ex.D18
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NC: 2024:KHC:5085 RFA No. 2517 of 2006 dated 22.05.1986 in favour of the defendant, which was sufficient to come to the conclusion that even according to the defendant himself, the said Gundu Rao was the owner of the suit schedule property and upon his demise, the plaintiffs had succeeded to the suit schedule property as his heirs and legal representatives. In other words, since the defendant claims right and possession over the suit schedule property through and under the said Gundo Rao, the defendant was estopped from disputing or denying the title and possession of the plaintiffs over the property. It is therefore clear that the trial court completely misdirected itself in answering issue No.1 against the plaintiffs by improper and erroneous appreciation of the material on record warranting interference by this Court in the present appeal.
Point No.1 is accordingly answered in favour of the appellants - plaintiffs by holding that they had established their title and possession over the suit schedule property. Re-Point Nos. 2 and 3 :-
Since both these points are interlinked, they are accordingly taken up for consideration together.
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11. According to the plaintiffs, late Gundu Rao was in need of financial assistance and in this regard, he borrowed monies from the defendant, who in turn obtained the signatures of Gundu Rao on blank stamp papers and created certain documents. The plaintiffs contend that Gundu Rao had not executed any sale agreement in favour of Subramani or the defendant and had not handed over possession of the suit schedule property to the defendant. Per contra, the defendant contended that the said Gundu Rao had earlier executed sale agreements Exs.D4 and D5 dated 19.12.1984 and 24.05.1983in favour of D.Subramani after receiving sale consideration from him which was returned back to Subramani by Gundu Rao by cancelling the said sale agreements after executing one more sale agreement at Ex.D18 dated 22.05.1986 in favour of the defendant. The defendant also contends that prior to execution of said sale agreement at Ex.D18 dated 22.05.1986, the said Gundu Rao had executed an Agreement dated 13.06.1984 in favour of the defendant and in terms thereof, he had handed over the possession of the suit schedule property to the defendant. The defendant also contended that he was the owner of the suit schedule property by virtue of the said sale agreement executed by Gundu Rao in his favour. The
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NC: 2024:KHC:5085 RFA No. 2517 of 2006 said rival contentions led to issues 2, 3 and 4 as well as issues 5 and additional issue No.1 relating to whether the plaintiffs were entitled to the reliefs of possession, mandatory injunction and damages sought for by them.
11.1 The trial court answered issue No.4 against the defendant by holding that the sale agreement at Ex.D18 dated 22.05.1986 did not confer right in favour of the defendant over the suit schedule property. However, issues 2 and 3 were answered in favour of the defendant against the plaintiffs by holding that the defendant was in possession of the suit schedule property in part performance of contract and that he was not in permissive possession of the property as contended by the plaintiffs. Accordingly, the trial court came to the conclusion that plaintiffs' possession over the suit schedule property was to be protected under Section 53-A of the Transfer of Property Act and consequently, the trial court answered issue No.5 and additional issue No.1 relating to the reliefs of possession and mandatory injunction and proceeded to dismiss the suit.
11.2 Before adverting to the rival contentions in this regard, at the outset, it is necessary to state that the sale transaction
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NC: 2024:KHC:5085 RFA No. 2517 of 2006 between Gundu Rao and Subramani are neither relevant nor material for the purpose of adjudication of issues / points 2 and 3 that arise for consideration in the present appeal; to put it differently, the sale transactions between Gundu Rao and Subramani and the pleadings and evidence of the parties in this regard would not have any impact or bearing on the question / issue as to whether the defendant was in possession in part performance under Section 53-A or whether he was in permissive possession of the suit schedule property.
11.3 In this context, a perusal of the pleadings and evidence of the defendant, in particular, the recitals / covenants contained in the sale agreement at Ex.D18 dated 22.05.1986 will indicate that even according to the defendant, he was not put in possession of the suit schedule property in part performance of contract under the said Agreement. On the other hand, the said sale agreement refers to two earlier agreements dated 13.06.1984 and 11.01.1985 said to have been executed by Gundu Rao in favour of the defendant; however, the said agreements have not been produced by the defendant. Further, clause No.6 of the sale agreement at Ex.D18 dated 22.05.1986 states that possession of the suit
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NC: 2024:KHC:5085 RFA No. 2517 of 2006 schedule property had been handed over by Gundu Rao in favour of the defendant on 20.06.1984; however, the said self-serving statement in Ex.D18 is not corroborated or substantiated by the defendant by producing legal or acceptable evidence in this regard.Further, even in the reply notice at Ex.D30 dated 07.08.1998 nor in the written statement has the defendant stated that he was put in possession of the suit schedule property on 20.06.1984 in part performance of the contract. Under these circumstances, it is clear that the defendant had failed to establish that he was in possession of the suit schedule property in part performance of the contract as contemplated under Section 53-A of the T.P.Act.
11.4 A perusal of the impugned judgment and decree will indicate that the trial court had not only failed to consider or appreciate the aforesaid material on record but has misconstrued and misread the pleadings and evidence by recording an erroneous finding that the defendant was put in possession of the suit schedule property from Gundu Rao despite there being no legal or acceptable evidence in this regard. The findings recorded by the trial court on issues 2 and 3 is based on surmises and
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NC: 2024:KHC:5085 RFA No. 2517 of 2006 conjectures and is contrary to the material on record. It follows there from that in the absence of any evidence to show that the defendant was in possession of the suit schedule property in part performance of the contract, the sole inference / conclusion that would arise in the facts and circumstances of the instant case is that the defendant was in permissive possession of the suit schedule property under the plaintiffs and the said findings recorded by the trial court deserve to be set aside.
11.5 As stated supra, the trial court came to the erroneous conclusion that the defendant was in possession of the suit schedule property in part performance of the contract as contemplated under Section 53-A of the T.P.Act. While dealing with the protection conferred upon an intending purchaser under Section 53-A, the trial court placed reliance upon the judgment of the Hon'ble Full Bench of this Court in the case of Narasimhasetty vs Padma Setty - ILR 1998 KAR 3230and the Apex Court in the case of Shrimant ShamraoSuryavanshi Vs Prahlad Bhairoba Suryavanshi - AIR 2002 SC 960 in order to hold that though the suit for specific performance of the sale agreement at Ex.D18 dated 22.05.1986 might be barred by
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NC: 2024:KHC:5085 RFA No. 2517 of 2006 limitation, the defendant would still be entitled to protect his possession under Section 53-A of the T.P.Act, even if he had not filed a suit for specific performance of contract under the sale agreement at Ex.D18 dated 22.05.1986. In this context, it is significant to note that from the date of the Agreement onwards, it is an undisputed fact that the defendant did not chose to file a suit for specific performance of contract. It is trite law that in order to avail the protection / benefit of Section 53-A of the T.P.Act, the mandatory pre-condition prescribed therein are to be fulfilled by the defendant as held by the ApexCourtand this Court in several judgments including the judgment of the Hon'ble Division Bench of this Court in the case ofPadmini Raghavan & Another vs. H.A.Sonnappa and others - ILR 2014 KAR 233, wherein it is held as under:-
83. The Supreme Court in the case of SHRIMANT SHAMRAO SURYAVANSHI AND ANOTHER Vs PRALHAD BHAIROBA SURYAVANSHI (DEAD) BY LRs AND OTHERS [ILR 2003 KAR 503] has held as under:-
"7. A perusal of Section 53-A shows that it does not forbid a defendant transferee from taking a plea in his defence to protect his possession over the suit property obtained in part performance of a contract even though the period of limitation for bringing a suit for specific performance has expired. It also does not expressly provide that a defendant transferee is not entitled to
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NC: 2024:KHC:5085 RFA No. 2517 of 2006 protect his possession over the suit property taken in part performance of the contract if the period of limitation to bring a suit for specific performance has expired. In absence of such a provision, we have to interpret the provisions of Section 53-A in a scientific manner. It means to look into the legislative history and structure of the provisions of Section 53- A of the Act.
8. Earlier, the assistance of historical facts or any document preceding the legislation was very much frowned upon for purposes of construction of statutes. At that time, there was some injunction against applying principle of looking into the historical facts or reports preceding the legislation in construing a statute. However, by passage of time, this embargo has been lifted.
9. In R.S. Nayak vs. A.R. Antulay - 1984 (2) SCC 183, it was held thus :
"(R)eports of the Committee which preceded the enactment of a legislation reports of Joint Parliament Committee report of a commission set up for collecting information leading to the enactment are permissible external aid to construction. If the basic purpose underlying construction of legislation is to ascertain the real intention of the Parliament why should the aids which Parliament availed of such as report of a Special Committee preceding the enactment existing State of Law, the environment necessitating enactment of legislation and the object sought to be achieved be denied to Court whose function is primarily to give effect to the real intention of the Parliament in enactment of the legislation. Such denial would deprive the Court of a substantial and illuminating aid to constructions. (SCC pp. 214-15 para 34) The modern approach has to a considerable extent eroded the exclusionary rule even in England. (SCC p.212. Para 33)"
The modern approach has to a considerable extent eroded the
exclusionary rule even in England (SCC p.212 para 33).
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10. Now the accepted view is that thedocument or report preceding the legislation can legitimately be taken into consideration while construing the provisions of an Act.
11. We, therefore, proceed to examine the question before us in the light of facts stated hereinafter.
12. In England, the provisions of the law of Property Act of the Statute of Fraud provided that no suit or action would be brought on agreement relating to a property which was not in writing signed by the parties. The aim and object of the statute was to protect a party against fraud. However, certain difficulties were experienced when it was found that under an oral agreement a party has performed his part of the contract, yet he was unable to bring any action or suit against other party viz., transferor for a specific performance of the agreement which was not in writing in view of the provisions contained in the Statute of Fraud. Under such situations, transferors managed to play fraud on innocent buyers who entered into an oral agreement and performed their part of the contract. In view of such prevailing circumstances in England, the Court of Equity intervened on the ground of equity and took action to enforce specific performance of a parole agreement. The view taken by the Court of Equity was that the object behind the Law of Property of the Statute of Fraud was to protect against a fraud, but the provisions of Law of Property of Statute of Fraud were being used as an instrument to help and protect fraud. Thus, the Court of Equity did not permit the Statute of Fraud to be used as an instrument to cover the fraud by the transferors where there was a part performance of a parole agreement.
13. When the Transfer of Property Act was enacted, Section 53-A did not find place in it. In the absence of Section 53-A, there arose difference of opinion between various courts in India as regards the application of English doctrine of part performance of contract as it was then prevailing in England. Since there was a difference of opinion on question of the application of English equitable doctrine of part performance in various courts of India, the Govt. of India resolved to set
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NC: 2024:KHC:5085 RFA No. 2517 of 2006 up a Special Committee for making recommendations amongst others whether the British equitable doctrine of part performance be extended in India also. The Special Committee was of the view that an illiterate or ignorant buyer who had partly performed his part of contract required statutory protection. The Committee was of the further view that where a transferee in good faith that lawful instrument i.e. a written contract would be executed by the transferor takes possession over the property, the equity demanded that the transferee should not be treated as trespasser by the transferor and subsequently evict him through process of law in the absence of lawful transfer instrument. The Special Committee also considered the question whether protection under the proposed Section 53-A to a transferee would also be available even if the period of limitation for bringing an action for specific performance of an agreement to sell has expired. On the said question, the Committee was of the view that even after expiry of period of limitation, the relationship between the transferor and transferee remains the same as it was within the period of limitation and, therefore, the possession over the property taken in part performance of an agreement is required to be protected even if the period of limitation for bringing an action for specific performance has expired.
14. The aforesaid recommendation of the Special Committee were accepted by the Govt. of India as the same is well reflected in the aims and objects of amending Act 1929 whereby Section 53-A was inserted in the Act.
15. The Special Committee's report which is reflected in the aims and objects of amending Act 1929 shows that one of the purposes of enacting Section 53-A was to provide protection to a transferee who in part performance of the contract had taken possession of the property even if the limitation to bring a suit for specific performance has expired. In that view of the matter, Section 53-A is required to be interpreted in the light of the recommendation of Special Committee's report and aims, objects contained in amending Act 1929 of the Act and specially when Section 53-A itself does
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NC: 2024:KHC:5085 RFA No. 2517 of 2006 not put any restriction to plea taken in defence by a transferee to protect his possession under Section 53- A even if the period of limitation to bring a suit for specific performance has expired.
16. But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. The necessary conditions are
1) there must be a contract to transfer for consideration any immovable property;
2) the contract must be in writing, signed by the transferor, or by someone on his behalf;
3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;
4) the transferee must in part performance of the contract take possession of the property, or of any part thereof;
5) the transferee must have done some act in furtherance of the contract; and
6) the transferee must have performed or be willing to perform his part of the contract.
17. We are, therefore, of the opinion that if the conditions enumerated above are complied with, the law of limitation does not come in the way of a defendant taking plea under Section 53-A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract has barred by limitation.
18. The matter may be examined from another angle. The established rule of limitation is that law of limitation is not applicable to a plea taken in defence unless expressly a provision is made in the statute. The law of limitation applies to the suits and applications. The various articles of the Limitation Act show that they do
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NC: 2024:KHC:5085 RFA No. 2517 of 2006 not apply to a defence taken by a defendant in a suit. Thus, the law of limitation bars only an action in a court of law. In fact, what the Limitation Act does is, to take away the remedy of a plaintiff to enforce his rights by bringing an action in a court of law, but it does not place any restriction to a defendant to put forward any defence though such defence as a claim made by him may be barred by limitation and cannot be enforced in a court of law. On the said principle, a defendant in a suit can put forward any defence though such defence may not be enforceable in a court of law, being barred by limitation.
19. In M.K. Venkatachari&Ors. vs. I.A.R. Arunachalam Pillai &Ors. AIR 1967 Madras, 410, it was held, thus:
"That defence to limitation is a creature of a positive law and, therefore, cannot be extended to cases which do not strictly fall within the enactment. It is an established canon of construction of law of limitation not to enlarge the scope of statutory provisions of limitation by analogy or logic".
20. It is, therefore, manifest that the Limitation Act does not extinguish a defence, but only bars the remedy. Since the period of limitation bars a suit for specific performance of a contract, if brought after the period of limitation, it is open to a defendant in a suit for recovery of possession brought by a transferor to take a plea in defence of part performance of the contract to protect his possession, though he may not able to enforce that right through a suit or action.
84. The Supreme Court in the case of FGP LIMITED vs SALEH HOOSEINI DOCTOR AND ANOTHER [(2009) 10 SCC 223] has held as under:-
"23. The submission by the appellant's counsel on part performance of the contract under Section 53-A of the Transfer of Property Act also cannot be accepted. Section 53-A of the Transfer of Property Act is based upon the equitable doctrine of part performance in English Law.
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NC: 2024:KHC:5085 RFA No. 2517 of 2006 Initially Section 53-A was not incorporated in the Transfer of Property Act but the same came by way of an amendment for the first time by the Transfer of Property Amendment Act 1929 (Act of 1929). The amendment had to be made in view of some divergence in judicial opinion on the application of the aforesaid equitable doctrine by various Courts in India.
24. Section 53-A of the Transfer of Property Act has certain ingredients and, in our judgment, those are:-
(1) a contract to transfer immovable property;
(2) the transfer should be for consideration; (3) the contract must be in writing; (4) it should be signed by or on behalf of the transferor;
(5) the terms of the contract can be ascertained with reasonable certainty from the writing; (6) the transferee takes possession of the whole or part of the property or if already in possession continues in possession;
(7) such taking of or continuance in possession should be in part performance of the contract; (8) the transferee should do some act in furtherance of the contract; and (9) he should have performed, or be willing to perform, his part of the contract.
25. The rationale of the equitable doctrine of part performance in English Law has been traced in Section 53-A by this Court in the case of Sardar Govindrao Mahadik Vs. Devi Sahai [1982(1) SCC 237]. In para 13, page 249 of the report while tracing the said equitable doctrine in the way it has been assimilated in Section 53- A of the Transfer of Property Act, the learned Judges held that the act or action relied upon as "evidencing part performance"; must be of such nature and character that its existence would establish the contract and its implementation. The learned Judges further held that the crucial act or action must be of such a character as to be unequivocally referable to the contract as having been performed in performance of the contract.
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26. In support of the said conclusion, the learned Judges referred to an Old English decision rendered in the case of (Lady) V. Earl of Glengall (2 HL Cases 131). In referring to the said case, the learned Judges quoted the observations therefrom and which are reproduced herein below: (Thynne case, HL. p.158) "...part performance to take the case out of the Statute of Frauds, always supposes a completed agreement. There can be no part performance where there is no completed agreement in existence. It must be obligatory, and what is done must be under the terms of the agreement and by force of the agreement..."
Relying on the aforesaid principle, the learned Judges in Sardar Govindrao Mahadik (supra) reiterated that the act relied upon by the party invoking the said doctrine must be such as by its own force to show the very existence of the same contract."
85. From the aforesaid judgments of the Apex Court it is clear that, the ultimate paragraph of Section 54 of the Transfer of Property Act, expressly enunciates that a contract for the sale of immovable property does not, of itself, create any interest in or charge on such property. But the ultimate and penultimate paragraphs of Section 40 of the Transfer of Property Act make it clear that such a contract creates an obligation annexed to the ownership of immovable property, not amounting to an interest in the property, but which obligation may be enforced against a transferee with notice or the contract or a gratuitous transferee of the property. Thus the Equitable ownership in property recognised by Equity in England is translated into Indian law as an obligation annexed to the ownership of property, not amounting to an interest in the property, but an obligation which may be enforced against a transferee with notice or a
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NC: 2024:KHC:5085 RFA No. 2517 of 2006 gratuitous transferee. When the Transfer of Property Act was enacted, Section 53-A did not find place in it. In the absence of Section 53-A, there arose difference of opinion between various Courts in India as regards the application of English doctrine of part performance of contract as it was then prevailing in England. A Special Committee was constituted to consider, whether the British equitable doctrine of part performance was extended in India also. Based on the recommendation of the Committee by Amending Act 1929, Section 53A was inserted in the Act. The purpose of enacting Section 53A was to provide protection to a transferee who in part performance of the contract had taken possession of the property even if the limitation to bring a suit for specific performance has expired. However, there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. The necessary conditions are:
1) there must be a contract to transfer for consideration any immovable property;
2) the contract must be in writing, signed by the transferor, or by someone on his behalf;
3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;
4) the transferee must in part performance of the contract take possession of the property, or of any part thereof;
5) the transferee must have done some act in furtherance of the contract; and
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6) the transferee must have performed or be willing to perform his part of the contract.
86. Therefore, it is clear that, before a transferee can claim the benefit of Section 53A, the contract should have been in writing signed by the transferor, the transferee should have got possession of the immovable property covered by the contract, the transferee should have done some act in furtherance of the contract and lastly the transferee has either performed his part of the contract or is willing to perform his part of the contract. Section 53-A makes it clear by employing the word "then" after laying down the pre-requisites that a transferee can seek refuge under it only after satisfying the above pre-requisites. In other words, the bar envisaged in the section against enforcement of the transferor's right can be exercised only on compliance with the postulates. Willingness to perform the roles ascribed to a party in a contract is primarily a mental disposition. However, such willingness in the context of Sec.53-A of the Transfer of Property Act must be absolute and unconditional. If willingness is studded with a condition, it is in fact no more than an offer and cannot be termed as willingness. Therefore, the sine qua non for basing a claim on Section 53A is the complete performance or complete willingness and not performance in part or conditional willingness or even willingness in part. It is only when the transferee has either performed his part of the contract or is willing to perform his part of the contract, he is entitled to the benefit of Section 53A of the Transfer of Property Act."
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NC: 2024:KHC:5085 RFA No. 2517 of 2006 11.6 It is well settled that mere possession in part performance of a contract is not sufficient for the defendant to avail the benefit of Section 53-A of the T.P.Act. In addition thereto, it was absolutely incumbent upon the defendant that had done some act in furtherance of the contract and has / had performed or was willing to perform his part of the contract. It is equally well settled that if the defendant - transferee who claimed to be in possession in part performance of the contract dated 22.05.1986 had not done any act in furtherance of the contract nor had performed or was wiling to perform his part of the contract from the date of the agreement till today, the defendant would not be entitled to the defence / benefit under Section 53-A nor defend the present suit by continuing to remain in possession of the suit schedule property. The trial court has failed to consider and appreciate the aforesaid statutory requirements and mandatory pre- conditions contained in Section 53-A of the T.P.Act and this has resulted in erroneous conclusion. Viewed from this angle also, I am of the considered opinion that the trial court misdirected itself in holding that the defendant was entitled to protect his possession under
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NC: 2024:KHC:5085 RFA No. 2517 of 2006 Section 53-A and consequently, the said finding recorded by the trial court deserves to be set side.
11.7 The aforesaid facts and circumstances clearly establish that while the defendant had failed to establish that he was in possession and enjoyment of the suit schedule property in part performance of the contract under Section 53-A of the T.P.Act, the plaintiffs had established that the defendant was in permissive possession and enjoyment of the suit schedule property under the plaintiffs and was liable to vacate and hand over vacant possession of the property to the plaintiffs and the findings recorded by the trial court in this regard deserve to be set aside and answered in favour of the plaintiffs against the defendant.
Point Nos. 2 and 3 are accordingly answered in favour of the appellants - plaintiffs against the L.Rs. of respondent No.1 - defendant.
Re-Point No.4:-
12. While dealing with Points 1 to 3 supra, I have already come to the conclusion that the Trial Court committed an error in rejecting the claim of the plaintiffs and upholding the defence of the
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NC: 2024:KHC:5085 RFA No. 2517 of 2006 defendant by improper and erroneous appreciation of the material on record and consequently, the impugned judgment and decree passed by the Trial Court deserves to be set aside and the suit of the plaintiffs deserves to be decreed in their favour against the defendant. It is a matter of record that during the pendency of the present appeal, the defendant who was initially arrayed as the sole respondent expired and his legal representatives have been brought on record. So also, vide order dated 07.12.2023, the BBMP was impleaded as respondent No.2 to the present appeal. However, no relief is sought for against the 2 nd respondent - BBMP in the present appeal or in the suit. Upon re-appreciation, re- evaluation and re-consideration of the entire material on record, I am of the considered opinion that the impugned judgment and decree passed by the Trial Court is capricious, perverse and contrary to the material on record warranting interference in the present appeal.
Point No.4 is accordingly answered in favour of the appellants against the L.Rs of deceased respondent No.1 - defendant.
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13. In the result, I pass the following:
ORDER
(i) Appeal is hereby allowed.
(ii) The impugned judgment and decree dated 27.10.2006 passed by the Trial Court in O.S.No.10926/1998 is hereby set aside.
(iii) The suit filed by the appellants - plaintiffs against the LRs. of deceased respondent No.1 - defendant is decreed in favour of the plaintiffs as prayed for by them.
(iv) The LRs of deceased respondent No.1 - defendant are granted 6 months time from today to vacate and hand over the vacant possession of the suit schedule property to the appellants -
plaintiffs.
Sd/-
JUDGE KTY / SRL List No.: 3 Sl No.: 1 CT:SNN